Transcript

Damien Carrick: Damien Carrick with you, this is the Law Report on RN.

Now to Indigenous land rights. Last week the Noongar people of WA received a formal final offer from the state government worth almost $1.3 billion. It is to resolve a long-running Native Title dispute over Perth and the state's south-west. Generally speaking though, Native Title has been heavily criticised for the slow resolution of claims and the failure to provide adequate legal rights or compensation to traditional owners. Now an emerging highly unusual case may create another legal avenue towards land rights. An elder from Lake Victoria, which is in south-west of New South Wales, has instigated a claim for compensation arguing the government breached her family's rights as squatters on their ancestral lands. The ABC's Deb Banks has the story.

Deb Banks: Lake Victoria sits near the point where the borders of South Australia, Victoria and New South Wales meet. Although a part of New South Wales, since 1922 the lake has supplied areas of South Australia with drinking water. 77-year-old Dorothy Lawson says she often heard her grandmother speak of her distress at how her family had to leave their home at Nulla Station where Lake Victoria sits. A lake tributary, Rufus River, is infamous for a massacre that took place there in the 1840s, only about a decade before Mrs Lawson's grandmother was born.

Dorothy Lawson: They mustered them all out. That's where they brought them in. There was a jail there, you know, on the Rufus River. They got out with what little families they had. What my grandmother said, it was most of her family that were slaughtered there, and that's why they didn't want to leave then, because she always wanted to go back to Nulla Station. And we said, 'No, you can't now Nan because somebody else owns it.' But she always believed that it was hers, that it was given, that it was their inheritance, you know.

Deb Banks: Dorothy Lawson now seeks to claim that inheritance at Lake Victoria, not relying on native title but on an old English law that protected the rights of squatters on Crown land. This law, called the Crown Suits or Nullum Tempus Act, was automatically imported into the law of the British colonies when it passed through the British Parliament in 1769. Listed agent for the compensation claim Mark Dengate is helping Mrs Lawson.

Mark Dengate: In a nutshell it appears, using the Crown Suits Act, otherwise known as the Nullum Tempus Act, that the subject of the Crown could claim what is otherwise known as a squatter's right after 60 years of adverse possession upon the Crown's land. In other words, even if by fluke this particular group were capable of showing that they had 60 years of adverse possession upon the Crown's land, it should be remembered that this is an era of terra nullius when the English basically claimed what would be equal to a freehold title over the east coast of New South Wales, therefore the Indigenous people in many respects who became British subjects in 1788 suddenly, by accident almost, became squatters upon the Crown's land.

Deb Banks: And Mr Dengate has found a precedent for the use of the Crown Suits or Nullum Tempus Act. In 1898 a squatter in New South Wales by the name of Mr Love took his case for 60 years of adverse possession against the Crown all the way to the Privy Council and won. David Yarrow is a Melbourne barrister with an interest in Native Title.

David Yarrow: This is one of the dirty secrets of nullum tempus. An eminent Aboriginal rights scholar Kent McNeill has written about Canadian law, that it applies equally to Australian law, that the common law provides for more security for trespassers, for adverse possessors, for squatters, provides better for their rights and the resolution of their claims that it does for Aboriginal peoples.

Deb Banks: Do you think Indigenous Australians may have wanted to test their squatters rights and that they were perhaps restricted in this ability to do so being unable to give sworn evidence for a time in Australia's history?

David Yarrow: There certainly were restricted for a long time in the 19th century from giving sworn evidence, and that's a significant injustice. But I think the greater perversity is the moment we enter in the question, Indigenous people wanted to test their squatters' rights, that actually gives credence to the theory that the Crown owned the land. I think that's an elementary injustice in itself. The difficulty here in the 21st century is that we acknowledge the Crown didn't own the land entirely, through the means of the acknowledgement of Native Title, but the test for that is so hard that Indigenous people rail against the restrictions of that test and look for other creative options. But in the 19th century it was an injustice that Indigenous people couldn't test their squatters' rights, but it was more of an injustice that the legal theory of the time accepted terra nullius.

Deb Banks: David Yarrow says there's been quite a number of squatter cases come to the courts, but not in an Indigenous context. He says these days such claims are heavily limited, but a 60-year adverse possession claim rooted in history may succeed. Mark Dengate:

Mark Dengate: You can't get more historical than the starting date being 1788 to 1848. That is the first 60 years of the history of New South Wales, that is about as historical as you can get. It certainly is rooted in history. The issue then becomes whether the actual squatters' right has been abandoned since that time. That of course, in our case, would raise issues to do with how were Indigenous people evicted from the land when the Nullum Tempus Act is an Act that bars the Crown from evicting any squatter after 60 years.

Deb Banks: Dorothy Lawson says up until 1922 her grandparents, Harry and Alice Mitchell, knew only one home and made their living from it.

Dorothy Lawson: Yes, they lived in mia mias, and then chopped trees and made wooden huts around the place. Fishing…out of a kangaroo, they used to make lines out of the sinews, and their own hooks out of their own little tree, off a tree they used to…sort of like a little spear on the end of it.

Deb Banks: Where Harry and Alice ever given a chance to argue their case to stay?

Dorothy Lawson: No, no.

Deb Banks: Land records from the time Lake Victoria was acquired show others being compensated but not her grandparents, and the idea of having the right to squat on her country is nothing new. In 1981 Mrs Lawson defeated an eviction notice from the local council.

Dorothy Lawson: What is so good about having to have to fight for what you believe is right? You know, I didn't get a big head out of it, I wanted to take them on because it was so many times that they knocked my little camp down.

Deb Banks: You know now that a New South Wales squatter by the name of Mr Love was granted possession of land by the Privy Council back in 1898 under the Nullum Tempus Act. Would you like that same opportunity?

Dorothy Lawson: As far as the High Court of Australia. I'm not going to go away without a fight.

Deb Banks: Mark Dengate, what is the current situation with negotiations? Where do you think this case will head?

Mark Dengate: At the moment until 19 July Mrs Lawson is in a position where she awaits a final answer from the South Australian government before she can proceed to court. At this stage though the negotiations tend to have been stagnant in relation to one issue, that being that the South Australia government insists on the statute of limitations issue being dealt with, meaning that Mrs Lawson would be required to go to court and basically get leave of the court to make an application for compensation 100 years after the event. That is not a difficult task. Mrs Lawson would argue that between 1848 and 1922 where various pastoral interests were granted at Lake Victoria, that on the basis of a possessory title being available in 1848 equal to a freehold title, the Crown of New South Wales would have been substantially barred from placing other titles over that freehold title.

A second option that Mrs Lawson has available is to proceed to the Supreme Court of New South Wales Equity Division, arguing that based on the 1848 possessory title being equal to a freehold title that any eviction done after that point in time would require compensation to be paid on the basis of breaches of fiduciary obligation by the New South Wales government, in that during the period from 1842 to 1878 the New South Wales legislature had refused Aboriginal evidence to be accepted into the courts of New South Wales. The court would see that the New South Wales Crown placed the possessory title holders into a position where they could not defend themselves from eviction, and at Equity it would raise serious compensatable issues.

If she was to proceed against the South Australian government, that technically could threaten the validity of many titles in the area. At this stage Mrs Lawson is weighing up her options on which way she feels is the best legal avenue for her to take.

Deb Banks: So how do you think you'll go?

Dorothy Lawson: I'm hoping that I'll see justice done. I aim to see it through. I want to fight it.